JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Sri Sankatha Rai, learned Senior Advocate, assisted by Sri J.P.Rai, learned counsel for the Defendant-Appellant. Sri P.C. Jain, learned counsel, has put in appearance on behalf of Plaintiff-respondents. 2. Through this Second Appeal, the appellant has assailed the judgment and decree dated 26.5.2004, rendered by the Ist Additional District Judge, Agra, in Civil Appeal No. 429 of 1997, Kunwar Narain Sharma v. Smt. Shanti Devi (Dead)/Smt. Prabhawati Devi. This Appeal arose out of a Suit for partition of House No. 28 (Municipal No. 39/79), Old Idgah Colony, Agra. The said Suit No. 186 of 1971, Kunwar Narain Sharma v. Smt. Shanti Devi, was brought by the respondent No. 1 herein, that is, Kunwar Narain Sharma, and was decided by the Trial Court, that is, VII Additional Civil Judge (S.R.), Agra on 20.10.1997. In the present case, both the parties are the legal heirs, son and daughters of a common ancestor, late Ram Narain Sharma, from his two wives. 3. The following admitted pedigree is relevant for the purposes of appreciation of the case : Lekhraj Chiranji Lal Hoti Lal (died in 1943) Laxmi Narain (Son) Smt.Bhagwati Devi Smt.Laxmi Devi (Daughter) (Daughter) Prem Narain (son) Ram Narain Sharma (Son) (1895-1963) (Smt.Indrawati Devi) (Smt.Shanti Devi-Second Wife) (First wife Married in 1914) (Marriedin 1924-Died during (Died in 1923) pendency of litigation on 2.10.1974) Smt. Prabhawati Devi (Daughter-Defendant-Appellant) Kunwari Narain Sharma Smt.Krishnawati (son Born in 1922) (Daughter-Died on 7.1.2003) (Plaintiff-respondent herein) Smt. Hemlata Govind Narain Surendra Dinesh Lalit Narain Bhagwat Narain Narain Narain Daughter Son Son Son Son Son 4. The plaintiff-respondent No. 1, Kunwar Narain Sharma, has set out a case in the plaint before the Trial Court that the house in dispute, that is, Kothi No. 28, Old Idgah Colony, Agra was acquired out of joint Hindu Family Fund/nucleus by late Ram Narain Sharma, his father, and he had substantial share in the said House. On the other hand, the Defendant-appellant, throughout maintained that the house in dispute was acquired by late Ram Narain Sharma out of his own and independent income as he was working as an Income Tax Officer in the Income Tax Department. He had served as an Income Tax Officer in the Income Tax Department from 1921 to 1940. 5. On the other hand, the Defendant-appellant, throughout maintained that the house in dispute was acquired by late Ram Narain Sharma out of his own and independent income as he was working as an Income Tax Officer in the Income Tax Department. He had served as an Income Tax Officer in the Income Tax Department from 1921 to 1940. 5. The plaintiff-respondent No. 1, Kunwar Narain Sharma, pleaded before the Trial Court that late Ram Narain Sharma, his father and the husband of Smt. Shanti Devi (step mother of the plaintiff-respondent), Defendant-appellant, had sufficient ancestral property and funds. His great grand father Lekhraj and grand father Chiranji Lal and grand father’s brother, Hoti Lal, were having income from Zamindari situate in neighbouring Aligarh District. With the help of HUF funds, late Ram Narian Sharma had purchased a plot of land in Old Idgah Colony, Agra and raised his residential house (Kothi), which is popularly known as Kothi No. 28, Old Idgah Colony, Agra. His grand father, Chiranji Lal, in addition to Zamindari property was also engaged in money landing business. He was also working as Head Clerk in the office of the District Inspector of Schools, Agra and had saved sufficient money to provide adequate funds to his son, that is, plaintiff’s father, late Ram Narain Sharma to purchase the said plot of land in Old Idgah Colony, Agra and get the house in dispute constructed. He pleaded that the house in dispute is a joint Hindu Family property and as such he sought partition in the family property. The plaintiff, Kunwar Narain Sharma, claimed that he alongwith his sons and father Ram Narain Sharma were the owners of the house in dispute. They were entitled to get half share in the property in the life time of late Ram Narain Sharma. As per pleadings in the plaint, the share of Ram Narian Sharma devolved on the plaintiff, Smt. Krishnawati Devi and Smt. Shanti Devi, deceased. 6. It was further pleaded in the plaint by the plaintiff-respondent No. 1, that late Ram Narain Sharma had died intestate in July, 1963. Thus, the interest of his deceased father in the Kothi and other properties have to be devolved upon his legal heirs according to Hindu Succession Act. 7. 6. It was further pleaded in the plaint by the plaintiff-respondent No. 1, that late Ram Narain Sharma had died intestate in July, 1963. Thus, the interest of his deceased father in the Kothi and other properties have to be devolved upon his legal heirs according to Hindu Succession Act. 7. It emerges from the record that Smt. Shanti Devi, step mother of plaintiff-respondent No. 1, Kunwar Narain Sharma, was residing in Kothi No. 28, Old Idgah Colony, Agra. It has been alleged by her that in January, 1968, she was ailing and came from Agra to Varanasi to live with her daughter, Smt. Prabhawati Devi and Son-in-Law, Chandra Shekhar Sharma. It has been further alleged that plaintiff-respondent No. 1, Kunwar Narain Sharma, taking advantage of this situation, had broken and opened the lock of the said house, that is, Kothi No. 28, Old Idgah Colony, Agra and took unauthorised possession of the whole house. Learning about this incident, Smt. Shanti Devi, the Defendant-appellant, had lodged a First Information Report in the local Police Station and a Criminal Case NO. 536/1968, under Section 448, I.P.C. was initiated against Kunwar Narain Sharma by the Police. The Trial Court had proceeded with the criminal case, so initiated, and Kunwar Narain Sharma was found guilty of the criminal trespass. Thus, the Trial Court, vide a judgment and order dated 29th March, 1971, had directed Kunwar Narain Sharma to pay Rs. 200/= and Rs. 100/= as fine. Against this punishment, he preferred a Criminal Appeal No. 114/1971, which was also dismissed by the District and Sessions Judge, Agra on 22.5.1971. By intervention of the Court, Smt. Shanti Devi was put back in possession of the Kothi NO. 28, Old Idgah Colony, Agra, that is, property in dispute on 4th July, 1971. 8. As per Sri Sankatha Rai, learned Senior Counsel, Kunwar Narain Sharma, the plaintiff, was adamant to continue to illegally occupy the house of Smt. Shanti Devi, that is, his old and ailing step mother as despite dismissal of his Criminal Appeal on 22.5.1971, he was not willing to handover the possession of the said Kothi to his step mother, Smt. Shanti Devi, the Defendant Appellant. Both the criminal Courts, that is, the Trial Court and the Appellate Court, had recorded findings against him and found him guilty of criminal trespass. Both the criminal Courts, that is, the Trial Court and the Appellate Court, had recorded findings against him and found him guilty of criminal trespass. In these circumstances, he filed a Civil Suit No. 186/1971 against his step mother Smt. Shanti Devi, initially seeking the relief of permanent injunction restraining the Defendant, appellant herein, from taking possession over the said residential house. Lateron, he sought decree for partition in the property in Suit claiming his share, stating in the plaint that the house in dispute was acquired from joint Hindu Family funds/nucleus. 9. A detailed written statement was filed in the Trial Court placing detailed facts about the status and acquisition of the house in dispute stating therein that it was acquired/constructed by late Ram Narain Sharma. The Defendant-appellant’s case, as it was pleaded in the Trial Court, lower Appellate Court and in this Court, is that the House No. 28, Old Idgah Colony, Agra, was a self-acquired property of late Ram Narain Sharma, a retired Income Tax Officer. It was not acquired by using Joint Hindu Family Funds or taking any kind of assistance from late Chiranji Lal, father of late Ram Narain Sharma or from any other brother of his father or any other relatives. Late Ram Narain Sharma, father of Kunwar Narain Sharma, the plaintiff-respondent and husband of Smt. Shanti Devi, the Defendant-appellant, was a self made man. After completing his Secondary Education, he obtained B.A. Degree in 1915 and thereafter had further earned L.LB Degree in the year 1917. For about four years, he had practised as Wakil/Advocate in the local Courts. In the year 1921, late Ram Narain Sharma was selected and appointed as Income Tax Officer in the Income Tax Department of Government of India. He had retired from service in the year 1940 and had died in the year 1963. During his service period, late Ram Narain Sharma was a member of Agra Housing Cooperative Society. ON 15.12.1935, he was formally allotted an open Plot No. 30/3, having an area of 0-15-17 for the purposes of construction of a residential house (Kothi) for which he had paid Rs.993-12/= as sale consideration. 10. It is note worthy that the plot was allotted to late Ram Narain Sharma being a member of the said Housing Cooperative Society in his own name (not in the name of a joint Hindu Family). 10. It is note worthy that the plot was allotted to late Ram Narain Sharma being a member of the said Housing Cooperative Society in his own name (not in the name of a joint Hindu Family). Late Ram Narain Sharma got the Kothi constructed in phases with the help of two Builders, namely, Hindustan Housing Company Limited and M/s. R.B. Sewaram and sons. The electrification work in the Kothi was got carried out by M/s. Sharma Electrical Trading Company, Agra. All the payments in this regard were made by late Ram Narain Sharma by withdrawing money from his Bank Accounts maintained in the Imperial Bank of India (presently known as State Bank of India) and Allahabad Bank. The statement of Account, that is, Paper No. 72-A, is available on record. 11. After completion of Kothi No. 28, Old Idgah Colony, Agra, a formal sale deed was executed by the said Housing Cooperative Society in favour of Ram Narain Sharma on 27th March, 1943. Thus, it is clear that the vendor was the said Cooperative Housing Society and vendee was late Ram Narain Sharma, not HUF. 12. Apart from the aforesaid payments made to the construction Companies/Builders, late Ram Narain Sharma has also paid Rs.1,000/= to his father, Chiranji Lal on 3rd June, 1940 after withdrawing the same from his Bank Account in the Imperial Bank of India. 13. Sri Sankatha Rai, learned Senior Advocate, after placing these facts, has laid much emphasis on the fact that late Ram Narian Sharma was an Income Tax Officer in the Income Tax Department of Government of India, thus, he was having his independent income, getting sufficient monthly salary being an Income Tax Officer. Being the member of the Cooperative Housing Society, he was allotted a plot in the capacity of a member of the said Housing Cooperative Society to build his residential house by the Housing Cooperative Society. The documents relating to constructions of Kothi No. 28, Old Idgah Colony, Agra also make it amply clear that late Ram Narain Sharma had met out the expenses incurred in the construction of the house in dispute out of his personal funds saved out of salary. Thus, it was his self acquired property. After his retirement in the year 1940, he had received Rs.27,384/= as his Provident Fund. His monthly salary/pension and the Provident Fund and other retiral benefits were substantial amounts those days. Thus, it was his self acquired property. After his retirement in the year 1940, he had received Rs.27,384/= as his Provident Fund. His monthly salary/pension and the Provident Fund and other retiral benefits were substantial amounts those days. 14. Learned Senior Counsel appearing for the appellant has drawn attention of the Court that the plaintiff-respondent, Kunwar Narain Sharma, was born in 1922 and in the year 1941 when late Ram Narain Sharma had retired, he was only 19 years of age and was getting education. On 14.5.1941, after his retirement from service, late Ram Narain Sharma had purchased another Kothi No. 51 from one Kashi Prasad Mathur for Rs.13,250/= through a registered sale deed. The sale consideration of the said Kothi was paid by late Ram Narain Sharma from his Bank Accounts. However, Kothi No. 51, Old Idgah Colony, Agra was a Benami transaction in the name of his son, Kunwar Narain Sharma, purchased out of his own funds. 15. During his life time, late Ram Narain Sharma had made adequate arrangements for his wife Smt. Shanti Devi, the step mother of Kunwar Narain Sharma, plaintiff-respondent. Smt. Shanti Devi had only one daughter, Smt. Prabhawati Devi, and was having no male issue. Late Ram Narain Sharma had executed a registered will in favour of his wife, Smt. Shanti Devi on 29.5.1951, in respect of his entire Kothi No. 28, Old Idgah Colony, Agra. It is pertinent to mention that this registered will was not challenged by any one. Late Ram Narain Sharma had died in the year 1963. Smt. Shanti Devi had entered into possession of Kothi No. 28, Old Idgah Colony, Agra and her name was mutated in the Nagar Maha Palika records on 29.5.1959 on the basis of the said registered will. 16. Sri Sankatha Rai, learned Senior Counsel appearing for the appellant, has drawn attention of the Court that Kunwar Narain Sharma, at this stage, neither filed any mutation application nor any objection was raised in mutation proceedings even after publication of notice. He had not claimed any right over Kothi No. 28, Old Idgah Colony, Agra after the death of his father late Ram Narain Sharma in the year 1963. 17. He had not claimed any right over Kothi No. 28, Old Idgah Colony, Agra after the death of his father late Ram Narain Sharma in the year 1963. 17. Smt. Shanti Devi, Defendant-appellant, whose name was mutated as owner of Kothi No. 28, Old Idgah Colony, Agra in the Nagar Maha Palika records, in her life time executed a registered will in favour of her daughter Smt. Prabhawati Devi on 18.6.1966. Kunwar Narain Sharma, plaintiff-respondent, despite knowledge of this registered will dated 18.6.1966, never raised any objection regarding the will nor he challenged the said will. Smt. Shanti Devi continued to reside in Kothi No. 28, Old Idgah Colony, Agra. Smt. Prabhawati Devi was married to Chandra Shekhar Sharma, who was a Sales Tax Officer and was residing in Varanasi. 18. In addition to above, Sri Sankatha Rai, learned Senior Counsel appearing for the appellant, has further submitted that Chiranji Lal, father of Ram Narain Sharma, was having five children. He was working as a Clerk in the office of the District Inspector of Schools, Agra. He had educated, his three sons, one of which, Laxmi Narain went to England for studies. The daughters were married in respectable families. The Zamindari income, as claimed by the plaintiff-respondent, was not much, but it was for the name sake only. Admittedly, a partition took place in the family in the year 1934-35 between Chiranji Lal and his brother Hoti Lal and, thus, the contention of Kunwar Narian Sharma, plaintiff-respondent, that Chiranji Lal, his grand father derived income from Zamindari and money landing business was not substantiated. Chiranji Lal was having a large family of five children to maintain and he was working as a Clerk in the Office of the District Inspector of Schools, Agra and as such it presents a picture that the family of late Ram Narain Sharma was a lower middle class or a middle class family of those days. For a Clerk, having a family of five children (all of them to be educated, married and settled in life), it was very difficult to maintain the family, then how could he provide funds to his one son to firstly purchase a plot and thereafter raise construction to construct a big residential house, that is, Kothi No. 28 in the central area of Agra City, that is, Idgah Colony, in the Agra City. 19. 19. It was also submitted by Sri Sankatha Rai, learned Senior Counsel for the Defendant-Appellant, that the plaintiff’s witnesses had himself stated before the Trial Court that Chiranji Lal was a Clerk in the office of the District Inspector of Schools, Agra and his real brother Hoti Lal Sharma, uncle of late Ram Narain Sharma, was a peon in Tehsil. Chiranji Lal was getting a salary of Rs.12/= per month and at the time of retirement he was getting a salary of Rs.150/= per month. Thus, how Chiranji Lal, father of late Ram Narain Sharma, could provide funds, as alleged by Kunwar Narain Sharma, plaintiff-respondent, out of this little income, to late Ram Narain Sharma firstly to purchase a plot and thereafter to raise construction on it. It is noteworthy that late Ram Narain Sharma had retired as an Income Tax Officer from the Income Tax Department, Government of India and was drawing a salary of Rs.800/= per month at that time. 20. The Defendant-appellant had placed documentary evidence, that is, Pass Books of the Banks, Diary and other materials to demonstrate that the residential house in dispute was constructed by late Ram Narain Sharma alone from his own funds and independent income. He made payments to the Contractors/Builders after withdrawing substantial amounts from his Bank Accounts. 21. The pleadings were exchanged in the Trial Court. The plaintiff, Kunwar Narain Sharma, had examined five witnesses in support of his case. He had examined his own sister, Smt. Krishnawati Devi and other witnesses. The Defendant-appellant had examined herself and Smt. Prabhawati Devi, her daughter, and other witnesses. Expert’s opinion and evidence was also put-forth. None of the witnesses were examined by the Defendant-Smt. Prabhawati Devi, daughter of Smt. Shanti Devi. 22. The Trial Court, vide a judgment and order dated 20.12.1997, after a long drawn litigation of 26 years, had dismissed the plaintiff’s suit. 23. An appeal was preferred to the First Appellate Court challenging the judgment and order of the Trial Court dated 20.12.1971. The said appeal remained pending for seven years and the same was decided on 26.5.2004. The judgment and order passed by the Trial Court has been set aside by the First Appellate Court and the plaintiff-respondent, Kunwar Narain Sharma’s Suit for partition in respect of Kothi No. 28, Old Idgah Colony, Agra was decreed. Kunwar Narain Sharma was allowed half share in the Suit property. The judgment and order passed by the Trial Court has been set aside by the First Appellate Court and the plaintiff-respondent, Kunwar Narain Sharma’s Suit for partition in respect of Kothi No. 28, Old Idgah Colony, Agra was decreed. Kunwar Narain Sharma was allowed half share in the Suit property. Against the judgment and order passed by the First Appellate Court, this Second Appeal has been preferred by the Defendant, Appellant herein. 24. This Second Appeal has been admitted on 4.8.2004 and following substantial questions of law were framed by the Court : “ (1) Whether the Trial Court had rightly held that Ram Narain Sharma-Income Tax Officer-had got the land underneath the Kothi No. 28 allotted from Agra Housing Cooperative Society and has raised construction of building through two builders and paid the entire amount withdrawing the same from his own accounts in Imperial Bank of India and Allahabad Bank, but the lower appellate Court has reversed the aforesaid finding of the trial Court without considering the material on record? (2) Whether the lower appellate Court has ignored the well settled principle of law that in order to prove that the disputed Kothi No. 28 was constructed by Ram Narain Sharma an Income Tax Officer out of joint family fund, the plaintiff would have to prove that there was joint family property yielding sufficient nucleus through which the disputed Kothi No. 28 was constructed? (3) Whether the entire finding of the lower appellate Court is based only on the interpolated entry in Geeta diary of Ram Narain Sharma made by Smt. Krishnawati Devi-the own sister of the plaintiff, Kunwar Narain Sharma, between 10.12.1968 and 4.7.1971 when the plaintiff had criminally trespassed the Kothi No. 28 and had removed the Geeta diary alongwith other materials of Ram Narain Sharma and was criminally punished by the Criminal Court, and the finding of the lower appellate Court is totally perverse? 25. Sri Sankatha Rai, learned Senior Counsel appearing for the Defendant-appellant, has assailed the judgment and order of the lower Appellate Court on various grounds. According to him, the lower Appellate Court without considering the evidence on record and without reversing the reasons and findings recorded by the Trial Court, has wrongly and illegally reversed the judgment and decree of the Trial Court. According to him, the lower Appellate Court without considering the evidence on record and without reversing the reasons and findings recorded by the Trial Court, has wrongly and illegally reversed the judgment and decree of the Trial Court. The lower Appellate Court has erred in decreeing the plaintiff’s suit for partition in respect of Kothi No. 28, Old Idgah Colony, Agra, which was in fact property of Smt. Shanti Devi, got constructed by her husband late Ram Narain Sharma, a retired Income Tax Officer from his own source of income and own funds. Taking the Court to various facts and chronology of events, learned Senior Counsel for the Defendant-appellant, has submitted that the lower Appellate Court has ignored the well settled principle of law that in order to prove that the disputed Kothi No. 28, Old Idgah Colony, Agra was constructed by Ram Narain Sharma out of Joint Hindu Family Fund, it was the burden of the plaintiff, Kunwar Narain Sharma, to have proved that there was sufficient Joint Hindu Family property yielding sufficient nucleus through which the disputed Kothi No. 28, Old Idgah Colony, Agra was got constructed. 26. The plaintiff, Kunwar Narain Sharma, has miserably failed to demonstrate before the lower Appellate Court as to how his grand father, Chiranji Lal, who was working as a Clerk in the office of the District Inspector of Schools, Agra, retired while getting a salary of Rs.150/- per month, having five children to maintain, could provide funds, which was used for construction of the house in dispute. Even the brother of Chiranji Lal, Hoti Lal Sharma was merely a peon in Tehsil and was separated in the year 1934-35 from his brother. There was no substantial income from Zamindari as well. No other material was placed to demonstrate that the two brothers were having income from money landing business and from Zamindari. The lower Appellate Court has excluded from consideration the finding recorded by the Trial Court that Kothi No. 51 was purchased by Ram Narain Sharma, paying the sale consideration out of his own funds in the name of his 19 years old son, Kunwar Narain Sharma when he was pursuing his studies. The lower Appellate Court has excluded from consideration the finding recorded by the Trial Court that Kothi No. 51 was purchased by Ram Narain Sharma, paying the sale consideration out of his own funds in the name of his 19 years old son, Kunwar Narain Sharma when he was pursuing his studies. This was a material finding, which cannot be ignored that such a father who had worked as an Income Tax Officer, retired getting salary of Rs.800/= per month, which was a pretty high salary to be paid to a Government Officer in those days in the year 1940, got constructed a residential house for the benefit of his wife also. Moreover, the registered wills and the mutation proceedings were not challenged by the plaintiff, Kunwar Narain Sharma. 27. The lower Appellate Court has given a perverse finding that Kothi No. 51 was purchased by Kunwar Narain Sharma through the sale deed dated 14.5.1941 out of a sum of Rs.15,000-16000/= given by his father in law at the time of his engagement in the year 1938 when he was only 16 years of age and was getting education. This is highly incredible that any student of 15-16 years of age, pursuing his education and not in any superior services, would be given Rs. 15000-16000/= in his engagement and he would purchase a residential house from this money. This theory appears to highly unbelievable and incredible. The lower Appellate Court has committed height of perversity in recording these findings. 28. Sri P.C. Jain, learned counsel for the plaintiff-respondent, has strongly opposed the Second Appeal. He has supported the findings recorded by the lower Appellate Court. According to him, the judgment and order of the lower Appellate Court is a well considered and well reasoned judgment. The findings of fact are based on appreciation of evidence. The lower Appellate Court in its judgment has discussed the faults and mistakes in the findings of the Trial Court. No material or evidence has been produced or pointed out on record, which is alleged to have not been considered by the lower Appellate Court. It is not the case of the Defendant-appellant that findings are not based on evidence or the same are perverse. The relevant materials, which were on record, were duly considered and the findings of the lower Appellate Court are based on the same. It is not the case of the Defendant-appellant that findings are not based on evidence or the same are perverse. The relevant materials, which were on record, were duly considered and the findings of the lower Appellate Court are based on the same. In view of this, it cannot be said that there existed any perversity or error of law in the findings of the lower Appellate Court. There cannot be re-appreciation of evidence in the Second Appeal as has been laid down by the Hon’ble Apex Court in the judgment in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864 . 29. Sri P.C. Jain, learned counsel for the plaintiff-respondent has taken the Court to a comparative table enclosed with his written argument, extracting relevant portion of both the judgments. According to him, the lower Appellate Court has properly considered the materials on record and appreciated the evidence. It has also met with the reasoning of the Trial Court and recorded cogent reasons on the basis of evidence. The reasons for disagreement have also been recorded by the lower Appellate Court. He has supported his submission by placing reliance on the judgment of the Hon’ble Apex Court in , Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 2009(3) SCC 287 , wherein the Hon’ble Apex Court has held that “One of the issues which arose for consideration before the High Court was as to whether the property in question was a joint family property. The learned trial Court answered the question in affirmative. The same was reversed by the first appellate Court. A finding of fact arrived at by the first appellate Court is ordinarily final. Its correction can be questioned if, interalia, the same was based upon no evidence or is otherwise perverse or the correct legal principles were not applied.” 30. He has further submitted that the lower Appellate Court has explicitly held existence of family property yielding sufficient joint Hindu family nucleus. He has pointed out to the statement of Chandra Shekhar Sharma, DW-4, that before 1922 whatever property was with the family of Ram Narain Sharma, it was Joint Hindu Family/HUF property. His father, Chiranji Lal was having 24 Bighas of agricultural land at Atrauli, Aligarh, yielding an income of Rs.200/= per year. Besides it, there was an ancestral house also in the Village. His father, Chiranji Lal was having 24 Bighas of agricultural land at Atrauli, Aligarh, yielding an income of Rs.200/= per year. Besides it, there was an ancestral house also in the Village. Thus, the lower Appellate Court has found Chiranji Lal Sharma to be of a sound financial status. He has provided higher education to all of his sons, one being Income Tax Officer and the other a Doctor, who went to England for higher studies and the daughters were married in the families of status. The lower Appellate Court has returned a clearcut finding of fact regarding existence of a family property and assets yielding sufficient funds. He has supported this submission by placing reliance on the judgments reported in 1920 P.C. 46, AIR 1961 SC 1258, 1986 ALJ 1146, AIR 1925 PC 132 and Clause 233 of Principles of Hindu Law by Mullah, which, according to him, support the judgment of the lower Appellate Court. 31. Sri P.C. Jain, learned counsel for the plaintiff-respondent, has further submitted that the findings regarding interpolated entry in Geeta diary maintained by the plaintiff’s father, Ram Narain Sharma, there is no finding recorded by the lower Appellate Court that the diaries produced in the case were interpolated. The lower Appellate Court has specifically given reasons to rely on the entries made in the diary. The diary was not in the hand-writing of Smt. Krishanwati, the real and own sister of the plaintiff-respondent, Kunwar Narain Sharma. 32. It was also submitted by the learned counsel for the plaintiff-respondent that the findings recorded by the Criminal Court and the judgment given in a criminal case is not binding on the Civil Suit in a Civil Case. He has placed reliance on the judgment of the Hon’ble Apex Court reported in 2009 SCW 5 to submit that it is now well settled that save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41 & 42 thereof, a judgment of criminal Court shall not be admissible in a civil suit. The plaintiff has not trespassed in the Kothi, rather for some time he was staying in the said Kothi upto 1954 to pursue his studies. According to him the judgment of the lower Appellate Court is unassailable. 33. I have heard learned counsel for the parties at great length and perused the materials on record. 34. The plaintiff has not trespassed in the Kothi, rather for some time he was staying in the said Kothi upto 1954 to pursue his studies. According to him the judgment of the lower Appellate Court is unassailable. 33. I have heard learned counsel for the parties at great length and perused the materials on record. 34. The facts and the chronology of events in this case itself present a picture of a middle class Hindu family of the first half of the 20th Century in a Northern Indian City of Agra region. Lekhraj, the great grand father of the plaintiff-respondent, Kunwar Narain Sharma and grand father of Ram Narain Sharma, father of the plaintiff-respondent belonged to an agricultural class hailing from Atrauli, Aligarh. His two educated sons moved to City of Agra where educational and job opportunities were available in the early 20th Century. Chiranji Lal got an employment as a Clerk in the Office of the District Inspector of Schools, Agra at a salary of Rs.12/= per month and the other brother, Hoti Lal Sharma, joined as a peon in the local Tehsil. Chiranji Lal has three sons, Laxmi Narain, Ram Narain and Prem Narain and two daughters. It is admitted to the parties that when Chiranji Lal was retired, he was getting a salary of Rs. 140/= per month. The income from agricultural land or Zamindary was a meagre income of Rs.200/= per year, which was meant for whole of family. As has been displayed by the parties that a meagre amount of Rs.200/= per year was available to the two brothers, that is, Chiranji Lal and Hoti Lal coming from Atrauli, District Aligarh, but there is nothing on record to show as to how and what amount was available to the family from money landing business. Late Chiranji Lal, a Clerk in the Office of the District Inspector of Schools, Agra, was involved in money landing business, maintaining five children, out of which three were pursuing their studies, was a hard task those days having a salary of only Rs.12/= per month when the family was in growing stage. It is also admitted to the parties that Chiranji Lal had given good education to his three sons and admittedly the daughters were also married in the families of status as their husbands were having high position in the society. 35. It is also admitted to the parties that Chiranji Lal had given good education to his three sons and admittedly the daughters were also married in the families of status as their husbands were having high position in the society. 35. Ram Narain Sharma, after obtaining B.A. and L.L.B. Degree, practised in the local Courts at Agra for about four years. Thereafter, he has been selected and appointed as an Income Tax Officer, in the Income Tax Department in the year 1921 and he retired from service after serving as an Income Tax Officer in the Income Tax Department for about 19 years in the year 1940. Being an Officer of the Central Government and having three children only, one son and two daughters, one from first wife and the second from second wife, to maintain, he planned his future and became a member of Agra Housing Cooperative Society as a result of which a plot was allotted to him. As per evidence, that is, the Statement of Account of his Banks’ Accounts, the said plot was purchased by him from his own resources. He has raised construction of the residential house on the said plot for which payments were made by him to the Building and and Electric contractors after withdrawing the money from his two Banks. It is natural when a son of a family constructs a house, some family assistance would have been rendered by the parents and relatives to enable a person belonging to a middle class family to construct a house. There is nothing unusual in this. 36. There appears to be nothing on record, except the Geeta Diary, entries of which alleged to have been disputed being interpolated, which shows that the funds were made available from the Joint Hindu Family Funds/Nucleus. The Bank Accounts were in the name of Ram Narain Sharma from which the amounts used for construction of the said house were withdrawn. The moneys were taken out from the said Bank Accounts for making payments to the Building and Electric Contractors. 37. The Trial Court as well as this Court have noted that there is sufficient evidence to prove the fact that all the payments were made by late Ram Narain Sharma alone by withdrawing the money from his Bank Accounts in the Imperial Bank of India and Allahabad Bank. The Statement of Accounts (Paper No. 72-A) established this fact. 37. The Trial Court as well as this Court have noted that there is sufficient evidence to prove the fact that all the payments were made by late Ram Narain Sharma alone by withdrawing the money from his Bank Accounts in the Imperial Bank of India and Allahabad Bank. The Statement of Accounts (Paper No. 72-A) established this fact. On 27.3.1941, the sale deed was executed by Agra Housing Cooperative Society in favour of Ram Narain Sharma. At that time, no other family members of the family have raised any objection in respect of execution of the sale deed in the name of Ram Narain Sharma. In addition to it, it has also come on record that Rs.1,000/= had been given to his father, Chiranji Lal on 3rd June, 1940 by late Ram Narain Sharma, after withdrawing the same from his Account maintained in the Imperial Bank of India. The chronology of events and the factual matrix of the case make the picture amply clear that late Ram Narain Sharma, being an Income Tax Officer in the Income Tax Department, was receiving a handsome and substantial monthly salary. Thus, from his monthly salary, he could have comfortably maintained his three children and could have also managed to save some amount for constructing residential house in the City of Agra right from acquisition of plot and raising construction known as Kothi NO. 28, Old Idgah Colony, Agra. It is no where pleaded that any member of the alleged Joint Hindu Family has ever raised any objection to it. At the time of retirement of late Ram Narain Sharma, he was receiving a salary of Rs.8,00/= per month in the year 1941 (this was the highest salary being paid to a District Officer, like Collector of the District and Superintendent of Police in any District). It is also admitted to both the parties that on 14.5.1941, late Ram Narain Sharma had purchased another Kothi No. 51 in the same Colony from one Kashi Prasad Mathur for Rs.13,250/= through a registered sale deed. It is also admitted to both the parties that on 14.5.1941, late Ram Narain Sharma had purchased another Kothi No. 51 in the same Colony from one Kashi Prasad Mathur for Rs.13,250/= through a registered sale deed. This Kothi No. 51 was purchased by late Ram Narain Sharma as Benami transaction in the name of his son, that is, the plaintiff-respondent, Kunwar Narain Sharma out of his own funds, which is evident from withdrawals made by late Ram Narain Sharma from his Bank Account in the Allahabad Bank on 5.5.1941 and the remaining amount was paid by him in cash. Plaintiff-respondent, Kunwar Narain Sharma, has tried to persuade the Court to believe that in the year 1938, he was given Rs.15,000-16,000/= by his father-in-law at the time of his engagement out of which he has purchased the said Kothi. At the relevant time, Plaintiff-respondent, Kunwar Narain Sharma was a 16 years old student and was not in any gainful employment. Merely coming with such type of suggestion, not substantiating the same by placing any evidence or material as to how and in what manner the said amount was received and where this amount was kept by this 16 years’ old student for three years, will be of no avail. Did his in-laws, in the year 1938, contemplate that this amount would be used for purchasing Kothi No. 51 in the name of Kunwar Narain Sharma, in the year 1941. The lower Appellate Court has recorded an incredible finding in this regard that Rs.15,000-16000/= was given to the plaintiff-respondent, Kunwar Narain Sharma, by his father-in-law for the purposes purchasing Kothi No. 51 that too in the year 1938 whereas the said Kothi No. 51 was purchased by his father Ram Narain Sharma in the year 1941. Thus, the findings appear to be perverse, twisted and not based on materials/evidence. 38. The lower Appellate Court was required to appreciate that Ram Narain Sharma had executed a registered will in favour of his wife in respect of Kothi No. 28, Old Idgah Colony, Agra on 29.5.1959 and no objection to this registered will was raised by the Plaintiff-respondent, Kunwar Narain Sharma. 38. The lower Appellate Court was required to appreciate that Ram Narain Sharma had executed a registered will in favour of his wife in respect of Kothi No. 28, Old Idgah Colony, Agra on 29.5.1959 and no objection to this registered will was raised by the Plaintiff-respondent, Kunwar Narain Sharma. After the death of Ram Narain Sharma, in the year 1963, at the instance of Smt. Shanti Devi, who was having possession of Kothi No. 28, Old Idgah Colony, her name was mutated in the Nagar Maha Palika records on the basis of the said registered will. Plaintiff-respondent, Kunwar Narain Sharma had neither filed any mutation application nor claimed any right over Kothi No. 28, Old Idgah Colony, Agra in the year 1963. Thereafter, on 18.6.1966, Smt. Shanti Devi, in her life time, executed a registered will in favour of her sole daughter Smt. Prabhawati Devi to which also the plaintiff-respondent, Kunwar Narain Sharma had never raised any objection. Thus, it is clear from the above facts that the plaintiff-respondent, Kunwar Narain Sharma had no claim over the said Kothi No. 28 as he had not raised any objection to the registered wills. The first registered will executed by late Ram Narain Sharma in favour of his wife Smt. Shanti Devi and thereafter by Smt. Shanti Devi in favour of her sole daughter, Smt. Prabhawati Devi remained unchallenged. 39. A material fact has come to light in this case that the plaintiff-respondent, Kunwar Narain Sharma had broken and opened the lock of Kothi No. 28 in the night of 10.12.1968 when his aged and ailing step mother Smt. Shanti Devi, Defendant-appellant, went to Varanasi. As a consequence of this incident, criminal proceedings were initiated against him and he was punished by the Judicial Magistrate, Ist Class, Agra, vide an order dated 29.3.1971. This punishment was approved by the District and Sessions Judge, Agra, vide an order dated 22.5.1971. There were specific allegations that the plaintiff-respondent, Kunwar Narain Sharma had removed Diaries, including Geeta Diary, Cheque Books and other papers of his father late Ram Narain Sharma. He had made interpolations in the Diaries of his father. In the cross-examination of his own sister, Smt. Krishnawati Devi, this illegal act was found to be proved. The plaintiff-respondent, Kunwar Narain Sharma, had used this Geeta Diary and the interpolations made therein for his benefit. He had made interpolations in the Diaries of his father. In the cross-examination of his own sister, Smt. Krishnawati Devi, this illegal act was found to be proved. The plaintiff-respondent, Kunwar Narain Sharma, had used this Geeta Diary and the interpolations made therein for his benefit. The interpolation was proved by his own sister, Smt. Krishnawati Devi. The Hand-writing Export was examined to prove forgery and fabrication etc. and the Trial Court had categorically held that the disputed entries was interpolated in Geeta Diary maintained by Ram Narain Sharma. It is also noteworthy that the entries in Diaries were not pleaded in the plaint by the plaintiff-respondent, Kunwar Narain Sharma regarding payment of some amount to Ram Narain Sharma by his father, Chiranji Lal Sharma. Both the Courts below had discredited that there were Zamindari properties and the family was involved in money landing business. Very surprisingly, the lower Appellate Court has based its findings on the aforesaid forged and fabricated entries or on a doubtful document whereas in such a case due caution and care ought to have been exercised by the lower Appellate Court. But, no satisfactory reasons have been recorded by the lower Appellate Court while reversing the findings of the Trial Court. 40. Before the Trial Court, the plaintiff-respondent, Kunwar Narain Sharma had failed to plead and prove that there existed a Joint Family property yielding sufficient income to form a nucleus or substantial joint family income with the help of which such a big property could be acquired. In fact, from the materials available on record, it was beyond the means of Chiranji Lal, who was working as a Clerk in the office of the District Inspector of Schools, Agra, having five children to maintain and educate them, to acquire such a property in the Agra City. Thus, the Trial Court has rightly dismissed the plaintiff-respondent’s Suit as the plaintiff-respondent had failed to discharge his burden. There is sufficient force in the submission of Sri Sankatha Rai, learned Senior Counsel appearing for the Defendant-appellant, that the findings of the lower Appellate Court are based on surmises and conjunctures. 41. Thus, the Trial Court has rightly dismissed the plaintiff-respondent’s Suit as the plaintiff-respondent had failed to discharge his burden. There is sufficient force in the submission of Sri Sankatha Rai, learned Senior Counsel appearing for the Defendant-appellant, that the findings of the lower Appellate Court are based on surmises and conjunctures. 41. It is evident from the finding of the Trial Court that Laxmi Narain Upadhyay, the brother of Ram Narain Sharma, had gone to England for Teachers’ Training Course on Government expenses, not with the help of funds provided by his father, Chiranji Lal Sharma, a Ministerial employee in the office of the District Inspector of Schools, Agra. Certainly, a new case was set out by the lower Appellate Court without any pleadings. The entry in the Diary of acquiring income from the mortgaged property appears to be unfounded. The Mortgage Deed was made, when Ram Narain Sharma was a practising lawyer. During the period from 1917 to 1921, he could have managed to arrange for Rs.4500/= in respect of Mortgage Deed. Thus, the findings recorded by the lower Appellate Court in this regard appear to be imaginary in order to give support to its findings. 42. It is noteworthy that the Trial Court was of the view that plaintiff-respondent’s Suit was bad for partial partition without including other Kothi No. 51. But, it is strange to note that the lower Appellate Court has not taken this fact into consideration that there was another Kothi No. 51 in the same vicinity in the name of plaintiff-respondent, Kunwar Narain Sharma, acquired in similar manner by Ram Narain Sharma, father of the plaintiff-respondent, Kunwar Narain Sharma, from his own funds. Thus, the finding of the Trial Court on this issue is correct. 43. In view of the discussions made above, this Court is of the view that the the findings of the lower Appellate Court are perverse and are not based on evidence on record. The lower Appellate Court has failed to record adequate, satisfactory and proper reasons to reverse the detailed and well considered findings of the Trial Court for forming the opinion to dismiss the Suit. Accordingly, the Second Appeal is allowed. The judgment and order of the lower Appellate Court dated 26.5.2004 is set aside and the judgment and decree of the Trial Court dated 20.10.1997 is affirmed. ————